Thursday, 30 April 2015

Alina
Tryfonidou, Associate Professor in EU Law, School of Law,
University of Reading

In a much awaited judgment
delivered earlier this week in Case C-528/13 Léger, the
Court of Justice ruled that permanent Member State bans on the donation of
blood by gay and bisexual men which are based merely on the fact that they had
had sexual relations with another man, may, in certain circumstances, be
justified by the need to ensure a high level of health protection. Below, I
will explain why this is a disappointing ruling which may, fairly, subject the
Court to accusations of, at best, not going far enough in the protection of LGB
rights and, at worst, deep-seated homophobia. Before exploring the reasons behind
these accusations, nonetheless, I shall summarise the legal and factual
background to the case and the main parts of the Court’s judgment.

The Law

In order to minimise any risk
of transmission of infectious diseases as a result of blood transfusion, Directive
2002/98 (‘the 2002 Directive’) sets standards of
quality and safety for the collection, testing, processing, storage and
distribution of human blood and blood components. The above instrument is
implemented by Directive
2004/33 (‘the 2004 Directive’), which, in its Annex
III, sets out the criteria for excluding certain categories of persons from
blood donations: Point 2.1 of the Annex provides that a permanent ban can be
imposed on, inter alia, ‘persons whose sexual behaviour puts them at high risk
of acquiring severe infectious diseases that can be transmitted by blood’ (‘the
2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary
ban may be imposed on ‘persons whose behaviour or activity places them at risk
of acquiring infectious diseases that may be transmitted by blood’ (‘the 2.2.2.
category’). The contested French measure – L’Arrêté
du 12 Janvier 2009 fixant les critères de selection des donneurs de sang (‘the
Decree’) – which was adopted in 2009 in implementation of the 2004 Directive,
and which, as its name suggests, sets the criteria for selection of blood donors
in France – provides a permanent contraindication
to blood donation (only) for a ‘man who has had sexual relations with another
man’; other categories of persons, such as persons who have had unprotected sex
with a casual partner or who have had multiple partners in the last four
months, are only temporarily banned from giving blood.

The Facts

The judgment under
examination was a response to a request for a preliminary ruling made to the
ECJ from the Tribunal administrative, Strasbourg. The question referred arose
in proceedings brought by Mr Geoffrey Léger against the French Blood Agency and
the French Minister for Social Affairs, Health and Women’s Rights, challenging
the refusal (which was based on the impugned Decree) of the healthcare
professional responsible for donations at the French Blood Agency, to accept Mr
Léger’s blood donation, on the sole ground that he had had sexual relations
with another man. The question that emerged was whether the permanent ban on
blood donation by a man who had had sexual relations with another man laid down
by the Decree was consistent with the 2004 Directive. In other words, can the
fact that a man has sexual relations with another man in itself amount to a valid reason for permanently excluding him
from being a blood donor?

The Judgment

The Court began its judgment
by noting that permanent deferral from blood donation under the 2004 Directive requires
the existence of a greater risk (‘high risk’) of acquiring severe infectious
diseases that may be transmitted by blood than that for temporary deferral. The
Court, then, explained, that the main question is whether a man who has had
sexual relations with another man satisfies the requirement of a ‘high risk’
which justifies the imposition of a permanent ban on blood donation.

The Court explained that this
question must be answered by the referring court, which must take into account
for this purpose current medical, scientific, and epidemiological knowledge about
France. In answering that question, the national court must ensure that the way
that it interprets the 2004 Directive is not contrary to the fundamental human
rights protected in the EU legal order and, in particular, that it does not
breach the prohibition of discrimination on the basis of sexual orientation
which is provided in Article 21 of the EU Charter of Fundamental Rights (‘the
Charter’). The Court pointed out that the Decree may discriminate on grounds of
sexual orientation contrary to the above provision, as it ‘determines the
deferral from blood donation on the basis to [sic] the homosexuality of the
male donors who, on account of the fact that they have had homosexual sexual
relations, are treated less favourably than male heterosexual persons.’ The
Court then proceeded to note that this may, nonetheless, be justified under
Article 52(1) of the Charter. It noted that although the permanent
contraindication provided for in the contested Decree contributes to minimising
the risk of transmitting an infectious disease to recipients of blood
transfusion and, thus, to the general objective of ensuring a high level of
health protection, this needs to be proportionate in order to be justified. In
particular it noted that, firstly, the referring court must verify whether
scientific or technical progress in the field of science or health (which
enables the detection of HIV) now allows a high level of health protection for
recipients to be ensured in situations involving men who have had sexual
relations with other men and, secondly, even if this cannot be verified, it stressed
that ‘a permanent deferral from blood donation for the whole group of men who
have had sexual relations with other men is proportionate only if there are no
less onerous methods of ensuring a high level of health protection for
recipients.’ In particular, as regards the latter, the ECJ pointed out that the
referring court must determine whether the questionnaire and individual
interview with a medical professional (which are mentioned in the 2004
Directive as methods which enable the determination of the level of risk of
individual blood donors) may, in fact, enable medical staff to identify the
type of behaviour presenting a risk for the health of recipients and in this
way impose a more limited exclusion, which does not cover the entire group of men who have had sexual relations with a man.

Comments

This case comes at a time
when a number of countries – both within and outside the EU – have relaxed, or consider
relaxing, their blanket bans on blood donation by gay and bisexual men. In
fact, France itself has, in recent months, begun to examine whether it should
relax the ban at issue in this case. Bans on blood donation by gay and bisexual
men were introduced back in the 1980s, in response to the AIDS epidemic, as it
was widely considered that men having sex with men were more likely to contract
HIV, which is the virus that causes AIDS. It is worth pointing out that recent
studies have shown no change in the safety of blood supply in countries which
have relaxed restrictions on blood donations by gay and bisexual men.

At first glance, one may view
the judgment in Léger favourably, in
that the Court does admit that blood donation bans which are purely based on
the fact that a man has had sex with another man are discriminatory on the
ground of sexual orientation and, thus, are contrary to Article 21 of the
Charter, unless justified. In fact, the Court not only provides detailed guidance
to the national court for determining whether such bans are justified but,
also, prompts the latter to apply a strict proportionality test, by examining
whether it is possible to achieve the same aim (i.e. a high level of health
protection) by adopting less restrictive measures, this demonstrating that a
finding that a ban is considered by the national authorities (merely) reasonable
does not suffice for justifying it. Accordingly, the judgment makes it clear
that Member States no longer have a carte blanche when determining whether –
and to what extent – they will ban or restrict blood donations by gay and
bisexual men but they must ensure that they comply with EU law and, in
particular, with EU fundamental human rights and the principle of
proportionality.

Nonetheless, a closer look at
the judgment reveals that there is a fundamental flaw in the Court’s reasoning
and this is that it perpetuates stereotypical assumptions about the sexual behaviour
of gay and bisexual men, which contribute to the continuing stigmatisation of
this segment of the EU society. In particular, by holding that in certain
circumstances permanent bans on blood donation which are imposed automatically when a man declares that
he is gay or bisexual are permitted under EU law, the Court implies that it is
acceptable to use a person’s sexual orientation for the purpose of making
assumptions about his sexual behaviour, in this context the assumption being
that all gay and bisexual men engage
in promiscuous, unprotected, sex. Moreover, maintaining a complete ban on blood
donations by all gay and bisexual men
appears to entail a significant contradiction when this is done in Member
States like the Netherlands or Belgium, which have been pioneers in permitting
same-sex marriage. Isn’t it contradictory to recognise that some gay and
bisexual men may wish to marry their long term partner and have a stable,
committed, and monogamous relationship with him, whilst at the same time a
permanent ban on blood donations by all gay
and bisexual men is maintained, because it is assumed that they are (all)
engaging in promiscuous sexual behaviour which places them at a high risk of
contracting serious disease? Accordingly, instead of reinforcing stereotypes
which lead to inaccurate assumptions about a certain part of the population
(gay and bisexual men), the Court should come to terms with reality and
recognise that there is a wide range of sexual behaviours among men and women,
and among LGB and heterosexual individuals and, thus, the sexual behaviour of
an individual depends neither on his or her sex nor on his or her sexual
orientation. This means that the sexual orientation of a person should not be
treated as the factor that defines
his or her sexual behaviour and, hence, it is inappropriate to consider that a
person engages in sexually risky behaviour only
because of their sex or sexual orientation.

Another problematic aspect of
the judgment is that, unlike the Advocate
General, the Court does not appear concerned at all by
the fact that the contested measure draws a (completely unjustifiable) distinction
between gay and bisexual men, on the one hand, and other segments of the
population which engage in behaviour which puts them at a high risk of
contracting a serious disease, on the other. More specifically, the contested
French Decree appears to be singling out gay and bisexual men as the only category of persons that deserves
to be permanently excluded from blood donations. Sex workers, heterosexual
persons who have unprotected sex with multiple partners, and intravenous drug
users are, clearly, categories of persons who are in high risk of contracting a
serious disease that can be transmitted via blood transfusion. Why, then, is it
acceptable that the French Decree does not permanently exclude these categories
of persons from blood donation? Doesn’t this fact, in itself, demonstrate that
the permanent ban imposed on gay and bisexual men is unjustifiable and disproportionate?
Moreover, given that the 2004 Directive and the French Decree require blood
donors to answer questions about, inter alia, their sex life, and to have an
interview with medical professionals, the latter are able to single out individuals (rather than categories of
individuals) who in actual fact
(rather than as a result of a mere assumption) engage in behaviour that places
them at a high risk of contracting a serious disease. This is another factor
that demonstrates that maintaining a blanket and permanent ban on blood
donation by gay and bisexual man is disproportionate in all circumstances and cannot be considered justified in certain
contexts (which is what the Court appears to suggest in its judgment).

Accordingly, and agreeing
with the Advocate General, the Court should rule that ‘the mere fact that a man
has had or has sexual relations with another man does not, in and of itself,
constitute a sexual behaviour placing him at a high risk of acquiring severe
infectious diseases which can be transmitted by blood’. The correct approach
would, hence, be for the Court to respond in this case by saying that Member
States should under no circumstances be permitted to impose a permanent ban on
blood donation on men simply and merely because they are gay or bisexual. The
sexual orientation of an individual can under no circumstances be considered a
sufficient reason for including him or her within a category of persons who
engage in risky sexual behaviour; rather, the inclusion in such a category
should be strictly dependent on the actual
behaviour of the individual. This means that Member States should be required to
provide in their laws that medical professionals should, in all instances, use
the interviews and questionnaires which are, already, provided in the 2004
Directive, as a means to identify persons who should either permanently or
temporarily be prevented from donating blood.

Yesterday, Nigel Farage, the
leader of the UK Independence Party, argued
that the EU’s response to the migrant deaths crisis ran the risk of admitting
half a million terrorists on to EU soil. He based this claim on the threat of
the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means
of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in
the slightest. First of all, the EU policy, as I discussed last week, is
essentially to reaffirm the status quo. The
current limited maritime surveillance missions will be expanded, although it is
not clear if they will amount to fully-fledged rescue missions. This probably
means that more people will reach the EU, but this will only be for the reason
that fewer of them will drown en route.

Once in the EU, they will be able
to make claims for asylum – but that is no different to the current law. The EU’s
plan does not involve any changes to EU asylum legislation; it simply calls on
Member States to apply those laws. The
EU did commit to some form of direct resettlement of refugees from third
countries – but EU leaders could not even agree on the tiny number of 5,000
refugees to be settled next year.

Farage would prefer a policy of
returning people to the countries they left. In fact, asylum-seekers can already
be returned to their countries of origin or transit, if it is clear when examining
their application that those countries are safe. But in accordance with the UN
(Geneva) Refugee Convention – which UKIP purports to support – they cannot be
returned to an unsafe country. Libya,
for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants.
In any event, asylum-seekers who
prove to be terrorists must be denied refugee status or other forms of
protection status, as the CJEU has confirmed.

Farage demands that David Cameron
veto the EU’s plans, but that simply isn’t possible, because the UK has an
opt-out from EU asylum and immigration law. We can choose not to participate,
and indeed the UK has already chosen not to participate in any of the second
phase EU asylum measures, except for those which transfer asylum-seekers from
the UK to other Member States. We can choose not to participate in any future
measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the
UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration
and asylum law has in fact been subject to qualified majority voting since
2005. (Laws on legal migration were subject to unanimous voting until 2009; but
the EU’s plan does not address legal migration issues).

As regards border control
operations in particular, the UK doesn’t participate fully in the EU’s border
control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the
full Schengen system of abolishing internal border controls. Instead we have an
informal arrangement, for instance supplying some hardware to assist with the
expanded surveillance operations. But even that sort of informal arrangement is
under challenge in a case pending
before the CJEU.

In some ways, Farage’s own policy
runs its own risks. He has argued that Christians in particular should be
admitted as refugees into the EU. As I have pointed out, this again violates
the Geneva Convention that UKIP purport to support, since that Convention
requires non-discriminatory application on grounds of religion, and it would
also be unfeasible to distinguish between Christians and Muslims during rescue
at sea. But if Christians are being resettled directly from areas afflicted by
Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters
to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist
methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities
have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in
Libya and Nigeria. Most of the people who
have been linked to Daesh in Europe have been EU citizens who travelled to
parts of the Middle East to participate in atrocities. Any migrants who were
rescued from boats or who were resettled directly from conflict areas would
presumably be disarmed of any weapons they were carrying en route. Of course,
they might obtain weapons once they reached the EU; but since Farage is an
outspoken critic of gun control, he is part of the problem, not of the
solution, to that issue. As for the figure of half a million Daesh fighters
coming to the EU, that's 20 or 30 times the CIA's estimate of the total number of
all Daesh fighters.

Finally, Farage argues that the
EU has cynically used the migrant deaths crisis to develop a comprehensive immigration
and asylum policy. If only it had: in fact, the EU’s response is largely
marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this
glass house. It is Farage who is
trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this
opportunity to make an inaccurate and incoherent rant in the midst of an election
campaign.

Thursday, 23 April 2015

Yesterday the EU
leaders, in the European Council, adopted a policy for addressing the
recent crisis of large-scale migrant death tolls crossing the Mediterranean. It
builds upon the recent 10-point plan adopted by ministers (discussed here),
but builds upon it in some respects. There were also some interesting
last-minute changes to the earlier draft of the text (all of which are
shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight,
the leaders’ statement shows more compassion than the 10-point plan, referring
to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent
more people from dying at sea’. To this end, there is a specific commitment to triple
the funds for ‘search and rescue’ as regards existing EU operations. However,
this is only ‘within the mandate of Frontex’ – and the head of the EU border
agency has stated that this agency does not really have a search and
rescue role.

It should be noted
that since these operations are coordinated by Frontex, detailed rules of EU
law will apply (discussed here) will apply. These rules do allow, in
some cases, for returns of migrants directly from their rescue to non-EU
countries – as long as those countries are safe. It is unlikely that in the
current situation, Libya would qualify as safe.

The destruction of
traffickers’ vessels ‘before they are used by traffickers’ seems to suggest
some Minority Report style
precognisance of the future use of the boats, considering that traffickers do
not paint logos on the side of their boats like ferries or shipping companies. This
is also qualified by a reference to compliance with international law. It may
be questioned whether this action will legally be a foreign policy operation
(as the leaders assume), given the approach to EU law taken in a recent CJEU opinion
concerning the EU’s anti-pirates operation (discussed here).

As compared to the
10-point plan, there is a reference to Interception of communications, and a
very brief reference to the root causes of the problem (conflict in countries
of origin, as well as Libya). The EU leaders took out a reference to stopping
migrants making it to the Mediterranean shores, but it’s obvious that this is
the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added
stress on readmission treaties, including with countries of transit; this
refers implicitly to EU readmission treaties with North African states (not
Libya) currently under negotiation. There are also two added references to the right
to asylum and EU asylum law, confirming that the EU leaders do not intend to simply
return migrants without considering their claims. Some press reports had
erroneously suggested an intention to return many thousands of migrants without
considering claims, but if migrants make it to EU waters or land, it would be
illegal to return them without examining their claims under EU law. Migrants
can be returned to countries of origin or transit if their asylum claims are
unfounded, as long as those countries are safe. Again, returning migrants to
Libya would, under current circumstances, breach EU and human rights law as
long as that country does not appear safe.

As compared to the
10-point plan, it appears that the intention is not to fingerprint all
migrants, but only those applying for asylum; this simply re-iterates
long-standing EU law. More generally, the plan says little about safe passage,
removing the original (and puny) target number of 5,000 resettlement places,
and not referring to other forms of safe passage instead. (While it would be
difficult to issue humanitarian visas in Libya, it would be possible to offer
this option - discussed further here - in other States). Equally, there is little practical solidarity
with frontline states; other Member States offer cash and help with processing
and return, but weakened any significant commitment to relocate people from
those frontline States.

There is an immediate commitment to issue a ‘roadmap’
next week, pre-empting the Commission’s agenda-setting role (its strategy paper
is due in May). However, the role of the European Parliament may still prove
significant, since it must approve any funding decisions or changes in
legislation.

Conclusions

Overall, the new commitment
to search and rescue is welcome, although it is qualified in light of Frontex’s
limited powers. The desire to address root
causes is good but seems half-hearted, and this is easier said than done. A more
ambitious strategy regarding the processing of asylum claims in non-EU transit states
is probably necessary in the medium term, but neither the EU leaders nor asylum
NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’
boats is subject to legal and practical constraints, and will be almost literally
a drop in the ocean. The summit result is frankly pathetic as regards safe
passage of migrants, ensuring that they avoid the risk of the crossing
altogether, and it is marginal as regards assistance to frontline Member
States.

On the whole,it
seems that the leaders want to do as little as possible to change the current
approach to dealing with the crisis. Similar to their method of dealing with
the euro crisis, this looks like a short-term patch-up that offers less than
first appears, which will probably have to be revisited soon.

Photo credit:
Kenneth Roth

Barnard &
Peers: chapter 26

Annex

Special meeting of the European Council, 23
April 2015 - statement

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text]

1. The situation in the Mediterranean is a
tragedy. The European Union will mobilise all efforts at its disposal to
prevent further loss of life at sea and to tackle the root causes of the human
emergency that we face, in cooperation with the countries of origin and
transit. Our immediate priority is to prevent more people from dying at sea.

2. We have therefore decided to strengthen
our presence at sea, to fight the traffickers, to prevent illegal migration
flows and to reinforce internal solidarity and responsibility. Given that
instability in Libya creates an ideal environment for the criminal activities
of traffickers, we will actively support all UN-led efforts towards re-establishing
government authority in Libya. We will also step up efforts to address conflict
and instability as key push factors of migration, including in Syria.

3. We today commit to:

Strengthening our presence at sea

a) rapidly reinforce EU Operations Triton
and Poseidon by at least doublingtripling the financial
resources for this purpose in 2015 and 2016 and reinforcing the number of assets,
thus allowing to increase the search and rescue possibilities within the mandate
of FRONTEX. We welcome the commitments already made by Member States which
will allow to reach this objective in the coming weeks;

Fighting traffickers in accordance with
international law

b) disrupt trafficking networks, bring the
perpetrators to justice and seize their assets, through swift action by Member
State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum
Support Office (EASO) and EUROJUST, as well as through increased intelligence
and police-cooperation with third countries;

c) undertake systematic efforts to identify,
capture and destroy vessels before they are used by traffickers;

d) at the same time, the High Representative
is invited to immediately begin preparations for a possible CSDP operation to
this effect, in accordance with
international law;

e) use EUROPOL to detect and request removal
of internet content used by traffickers to attract migrants and refugees, in
accordance with national constitutions;

Preventing illegal migration flows

f) increase support to Tunisia, Egypt,
Sudan, Mali and Niger among others, to monitor and control the land borders and
routes in order to prevent potential migrants from gaining access to
Mediterranean shores, building on current CSDP operations in the region, as
well as on regional cooperation frameworks (Rabat and Khartoum processes); step
up dialogue with the African Union at all levels on all these issues;

g) reinforce our political cooperation with
African partners at all levels in order to tackle the cause of illegal
migration and combat the smuggling and trafficking of human beings. The EU will
raise these issues with the African Union and the key countries concerned, with
whom it will propose the holding of a summit in Malta in the coming months;

h) step up cooperation with Turkey in view
of the situation in Syria and Iraq;

i) deploy European migration liaison
officers in key countries to gather information on migratory flows, co-ordinate
with national liaison officers, and co-operate directly with the local
authorities;

j) work with regional partners in building
capacity for maritime border management and search and rescue operations;

k) launch Regional Development and
Protection programmes for North Africa and the Horn of Africa;

l) invite the Commission and the High
Representative to mobilise all tools, including through development cooperation
and the implementation of EU and national readmission agreements with third
countries, to promote readmission of unauthorised economic migrants to
countries of origin and transit, working closely with the International
Organisation for Migration;

m) while respecting the right to seek
asylum, set up a new return programme for the rapid return of illegal
migrants from frontline Member States, coordinated by FRONTEX;

Reinforcing internal solidarity and
responsibility

n) rapid and full transposition and
effective implementation of the Common European Asylum System by all
participating Member States, thereby ensuring common European standards under
existing legislation;

o) increase emergency aid to frontline
Member States and consider options for organising emergency relocation between
all Member States on a voluntary basis;

p) deploy EASO teams in frontline Member
States for joint processing of asylum applications, including registration and
finger-printing;

q) set up a first voluntary pilot project on
resettlement across the EU, offering at least 5,000 places to persons
qualifying for protection.

4. The EU institutions and the Member States
will work immediately on the full implementation of these orientations. The
Presidency and the Commission will present next week a roadmap setting out work
up to June.

5. The European Council looks forward to the
Commission Communication on a European Agenda for Migration, in order to
develop a more systemic and geographically comprehensive approach to migration.
The European Council will remain seized of the situation and will closely
monitor the implementation of these orientations. The Council and the
Commission will report to the European Council in June.

Wednesday, 22 April 2015

On Monday, EU foreign and
interior ministers adopted a ten-point plan in response to the recent
huge death toll of migrants crossing the Mediterranean. There will be a summit
on Thursday to examine the issue further, and then an EU Commission strategy
proposed on May 13th. But for now, I want to examine the initial
plan.

Overall, this is a very disappointing
document. It’s not only vague on crucial details but more importantly focusses
less on the situation of the migrants (addressing the root causes which cause
them to move, and protection from drowning and persecution) and more on border
control and repression. One point in the plan constitutes a rather crass example
of ‘policy laundering’ – attempting to use a crisis to shove through an essentially
unrelated policy objective.

Let’s look at the ten points of
the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians
only’ approach which some have suggested. For alternative solutions to the
problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the
Mediterranean, namely Triton and Poseidon, by increasing the financial
resources and the number of assets. We will also extend their operational area,
allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and
rescue, although it’s not clear if this is actually intended to be a search and
rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency)
concerns border control, not search and rescue as such. Indeed there is no
mention of search and rescue here, or in the rest of the plan. Nor is there any
express mention in the plan of the recent loss of life. There are no details of
the extent of the increase in financial resources and assets, or the extent to
which the operational area will increase.

A systematic effort to capture and destroy vessels
used by the smugglers. The positive results obtained with the Atalanta
operation should inspire us to similar operations against smugglers in the
Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against
pirates in the Indian Ocean. It’s clear from press briefings that the intention
is to have another military operation regarding the smugglers. This will
obviously entail significant costs and raises legal questions about the
jurisdiction which the EU Member States have to destroy boats in the waters of
third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet
regularly and work closely to gather information on smugglers modus operandi,
to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU
border control agency, the EU asylum support agency and the EU prosecutors’
agency. The asylum support agency has traditionally had little or nothing to do
with this issue, and there is a risk that some of its funding is diverted.
There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint
processing of asylum applications;

This will defray the cost of processing for those Member States and
speed up processing times for overburdened administrations. It’s not clear
whether this will simply be an application of existing rules which allow EASO
to simply support national administrations, or whether there will be a shift to
genuine ‘joint processing’ by a group of Member States or the agency as such.
That would require fresh legislation.

Member States to ensure fingerprinting of all
migrants;

EU legislation already requires fingerprinting of all short-term visa
applicants (once the EU’s Visa Information System is fully applied, in the next
year or so), residence permit holders, asylum applicants and persons crossing
borders without authorisation. All holders of EU passports (ie EU citizens)
must also be fingerprinted. The only gaps here are non-visa nationals coming
for short-term visits (ie citizens of countries like the USA and Canada) and
irregular migrants who have ‘overstayed’ after a legal entry. However, after the
EU’s Visa Information System is fully applied, the second group (overstayers)
will simply be a sub-category of the first group (non-visa nationals), since
everyone needing a visa will already have been fingerprinted. And proposed
legislation establishing an entry-exit system will require the non-visa
nationals to be fingerprinted too, although it will take a number of years for
that legislation to be agreed and made operational. These various categories of
people are subject to different rules as regards how the fingerprint
information is stored and used; it’s not clear if the intention is to change those
rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to
do with the issue of migrants drowning at sea in an attempt to reach the EU. It
would perhaps make sense to reiterate the requirement to fingerprint all those
who apply for asylum or attempt to cross the border without authorisation (as
all those migrants who attempt to cross the Mediterranean are doing), but the
plan clearly refers to ‘all migrants’. So we can only conclude that this is a
blatant attempt at policy laundering.

Consider options for an emergency relocation
mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or
recognised refugees from the Member States which have an obligation to consider
their claim, or which have recognised their refugee status, to other Member
States. It would obviously reduce the pressure on the Member States which
receive a significant number of refugee claims from migrants crossing the Mediterranean
– most notably Malta, Italy (the island of Lampedusa) and Greece. However, it
would entail either suspending the EU’s Dublin rules on asylum responsibility
in part (requiring a legislative amendment) or encouraging voluntary offers from
Member States which are not responsible under the rules. Both options have been
discussed many times over the years with no success (Dublin amendments) or very
little success (voluntary offers). The wording used here (‘consider options’)
is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement,
offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU)
countries who need international protection and moving them to the EU. This is
the only one of the ten points which offers ‘safe passage’, ie a way for
would-be asylum-seekers to enter the EU without running the risk of drowning
when crossing the Mediterranean. The ‘number of places’ is not specified, and
it should be noted that under EU financial law, a ‘pilot project’ is a
short-term programme using only a small amount of money. Furthermore, the
project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe
passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return
of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a
final negative decision has been taken upon their application. So this refers
to people whose asylum application has definitively failed, or who never made
such an application and have no other ground to stay. There are procedural
rights in the EU’s Returns Directive for irregular migrants, but there is no
mention of them (or the asylum laws) here. Frontex already has a role
coordinating joint return flights; the intention is to devote more effort (and
presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through
a joined effort between the Commission and the EEAS; initiatives in Niger have
to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations
with third countries have a role to play. It isn’t clear what this ‘engagement’
will concern. Will it focus on the conditions in the countries of origin and
transit, thereby ensuring that fewer people want to head to the EU in the first
place? Or is the EU only concerned with the repressive aspects, such as
tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key
third countries, to gather intelligence on migratory flows and strengthen the
role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows,
although it’s not clear what will be done with that intelligence once it’s
obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian
solution?

Some have suggested that the EU adopt
the supposed ‘Australian solution’, of sending boats to stop the migrants
reaching the territory of the EU. In fact this is a highly simplistic
understanding of Australian asylum policy. The Australians do not intercept most
migrants just outside their country of origin or otherwise return them there
directly. Rather the policy is to send asylum-seekers to various Pacific
islands for processing and to live permanently if a claim is successful. Australia
gives the countries concerned significant cash in return. Moreover, Australia
has a very active resettlement policy, recently increasing the numbers of
permits granted from about 13,000 to about 20,000. So the asylum policy is justified by Australia
as a means to stop people ‘jumping the queue’. Also, the policy is underpinned
by indefinite detention of anyone who does make it to Australian shores without
authorisation.

Could this policy be applied to
the EU? There are some big legal problems. The European Court of Human Rights
has ruled that migrants cannot simply be intercepted and returned to third
States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of
the States participating in the Australian policy have been strongly criticized
by human rights groups. Also, the EU’s Returns Directive bans indefinite
detention of irregular migrants. That Directive does not apply to asylum-seekers,
but EU asylum legislation applicable from July this year sets many new conditions
regulating such detention. It’s highly arguable that detention of
asylum-seekers cannot be justified (at the latest) once the final decision on
the application has been made, or after the new EU deadlines to decide on
asylum claims have passed. After that point the time limits for detention in
the Returns Directive will apply.

Even if these legal problems
could be overcome, could the Australian solution be replicated by the EU? The
EU would have to find third countries willing to house large numbers of
refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved
in Mediterranean crossings (about 200,000 in 2014) is far higher than those
covered by the Australian solution (25,000 in 2012-13). So, although accommodating
asylum-seekers in transit States is likely to play an important part in any
long-term solution, this is easier said than done; and it’s important to note
that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for
the Australian solution simply ignore Australia’s resettlement policy, which is
one of the most generous in the world. Its 20,000 permits a year, for a
population of 23 million, scale up to about 50,000 resettlement permits for the
UK, and 450,000 across the EU. When the advocates of the Australian solution start
to talk about that scale of resettlement, we should take them seriously – but not
before.

Christians

Some have suggested that the UK
and/or EU should focus exclusively on admission of Christian asylum-seekers, on
the basis that they have ‘no other place to go’. Does that policy make sense? It’s
undoubtedly true that some Christians face persecution, but so do many
non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans
discrimination on grounds of ‘race, religion or country of origin’. It isn’t
correct to suggest that Christians can’t live safely anywhere in any Arab or
Muslim state: many of those States maintain the centuries-old tradition
of letting Christians live without persecution, and indeed there are a large
number of Christians living in Lebanon in particular. And it’s hard to see how
this policy will work. Will Christians alone be rescued from boats in the
Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’
claims to be Christians be examined: by making applicants sit a Religious
Education A-level on the boat? Or simply checking (for men and boys) to see if
they are circumcised (and therefore likely to be Muslim) or not?

Comments

The first striking thing about
the EU policy is that it pays little attention to the human emergency that
triggered it: the deaths of hundreds of people, which resulted from a
collective EU decision to stop search and rescue in the Mediterranean. There’s
no express mention of the deaths themselves in the plan, and the Commission
President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths
– as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to
expand the existing missions fails to mention any search and rescue aspects,
and there is a very limited reference to expanding one form of safe passage. No part of the plan mentions dealing with the
situation in countries of origin, or helping countries of transit manage the
number of migrants on their territory. Instead, there is a strong emphasis on
expulsion of migrants from the EU. Overall, this leaves the impression that the
ministers aren’t shocked that migrants have died – but rather irritated that
some of them didn’t.

Arguments about the costs of
rescue, or of asylum-seekers reaching the EU, are undercut by the implicit
plans to spend considerable sums of money on a military mission, fingerprinting
of migrants, expulsion, and intelligence gathering. So the argument isn’t
really about economic cost – but the social and political impact of migration.

As for the intention to crack
down on trafficking and smuggling, few will have sympathy for the vultures that
profit from others’ suffering and frequently jeopardise the lives of hundreds
of people. But it seems odd to focus on them in this plan without also trying
to address the broader situation of the migrants themselves – as if the means
by which people make dangerous journeys to the EU are more important than the
reasons why they do this. On this point, the plan resembles the decades-long US
policy of military missions in Latin America, trying to destroy drug crops.
Admittedly, it’s harder to build new boats than to grow more drugs – but then,
the migrants aren’t exactly coming on cruise ships. The policy may well have
the effect of lowering the (already low) quality of vessels used to cross the
Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of
a broader policy which aims to deal with the root causes of migration and the
position of migrants in transit countries, it could make them less (not more)
safe.

Monday, 20 April 2015

The latest tragedies in the Mediterranean
add to the enormous and growing death toll of
migrants crossing that sea. Today EU ministers will consider the issue as a
matter of urgency, and the Commission is due to propose an EU strategy next
month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate
a major search and rescue operation. The EU’s ‘Triton’ operation which replaced
the Italian ‘Mare Nostrum’ operation from the end of last year is obviously
inadequate as regards saving lives – which is not its main purpose in the first
place. Equally the assumption that the termination of Mare Nostrum would reduce
the number of migrants willing to undertake the Mediterranean crossing – and die
in the attempt – was obviously mistaken.

The new operation need not be an EU
operation as such, due to legal questions about how much the EU as such can set
up a search and rescue operation. Possibly the EU, or at least a large group of
its individual Member States, can contribute toward the coordination and
funding of a joint operation, rather than leave this entirely up to the Italian
government as before.

Secondly, the EU has an established
system for border surveillance, known as Eurosur. Its main focus in border
control but it has a subsidiary role as regards detecting migrants in need of
rescue. It could be focussed more on the humanitarian aspect, if necessary by
means of a rapid amendment to the legislation establishing it – or alternatively,
if there are legal doubts about this, by a parallel agreement among the Member
States.

Thirdly, the EU should address the important
role of the private rescue of migrants. At present, the EU Directive
prohibiting the smuggling of migrants specifies that any assistance to
irregular migrants is prohibited – even if the person or organisation concerned
is not acting for profit. There is only an option
for Member States to exempt humanitarian assistance from the prohibition. This
legislation should be amended as soon as possible to make this exception
mandatory, clarifying that this also exempts private sea vessels which assist
those in need (in accordance with the law of the sea) also benefit from the
exception. Private vessels which lose money as a result of offering assistance
(for instance, because they were diverted from catching fish) should be
compensated by national or EU funds if necessary. This amendment could be
fast-tracked, pending a more comprehensive review of the legislation to consider
the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address
the situation in countries of origin and transit, so that fewer people feel the
need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially,
economically or politically feasible for the EU to offer protection to everyone
in the world that needs it. Of course, solving the conflicts and poverty that
cause desperate people to flee in the first place is far easier said than done.
But it would certainly be possible to fully review EU foreign policies and
development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there
are several other external aspects of EU migration policy. For those who have a
need for international protection, many already receive support or protection
in neighbouring and transit countries, and the EU could step up its contribution
to such assistance. A proportion of the
people concerned are already resettled by Member States, and the EU could increase
its support for this resettlement process. It might be useful to amend EU
asylum legislation to confirm that the persons concerned have refugee status in
the Member States concerned, in accordance with the EU’s ‘Qualification
Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications
for asylum lodged at their consulates in third (non-EU) countries. At the end
of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current
visa code requires Member States to
issue visas to applicants if the criteria for issue are met. The visa code mainly
applies to short-term visas, not visas for people who need long-term
international protection. However, the code also provides for rules on the issue
of a short-term visa with ‘limited territorial validity’ (LTV). These visas are
not valid in all Schengen states, but rather valid usually in only the single
Schengen State which issues them.

According to the current visa code, an
LTV visa ‘shall be issued…when the Member State concerned considers it
necessary on humanitarian grounds, for reasons of national interest or because
of international obligations’. The important point is that an LTV visa can be
issued where the usual conditions for issuing a visa are not met, for instance
where there is insufficient evidence of an intention to return to the country
of origin. Obviously, where a person has a genuine protection need, a
reluctance to return to her country of origin is perfectly understandable;
indeed, it is built into the very definition of refugee or subsidiary protection
status (ie a well-founded fear of suffering persecution or serious harm in that
country).

It’s arguable the 2013 CJEU ruling in
the Koushkaki judgment also
applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is
then qualified by the words ‘considers it necessary’. But arguably, at least in
cases involving a potential international protection need, the EU Charter of
Fundamental Rights requires that where a person applies for a visa from a
(Schengen) Member State, the existence of such a need must be considered if it
is alleged, and an LTV visa must be issued if such a protection need exists. It
can hardly be denied that EU law (and therefore the Charter) applies whenever a
third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could
agree that this is the correct interpretation of the existing law, and take
action to put it into effect, for instance adopting guidelines or standard rules
for consulates on how to apply such obligations. EU funds could assist with any
additional costs for Member States.

There’s also an immediate opportunity
to address this issue by means of legislation, since proposed
amendments to the visa code that would fully overhaul it are currently
under discussion in the Council and the European Parliament (EP). These
proposals raise many different issues, and the Council and EP are still at an
early stage of discussing them. But it would be possible to split up the
proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I
suggested a simple amendment to the visa code to this end. This would simply
amend the rules to state that an LTV visa ‘shall be issued…when it is
necessary in order to ensure the international protection of the person
concerned in accordance with Directive 2011/95 [the Qualification Directive],
or when the Member State concerned considers it necessary…’.

In the longer term, other difficult
and controversial aspects of an external protection policy could be developed. It
would be possible to develop ‘joint external processing’ of asylum claims, as
long as such processing in no way prejudices applications made at the border or
on the territory of Member States, and entails the entry and stay of persons
with international protection needs either on the territory of Member States,
or on the territory of third countries which offer an equivalent level of
protection. Nor should joint processing prejudice the resettlement of those
groups of persons (such as Syrian refugees) whose need for international
protection is obvious.

The problems associated with such
joint processing should not deter the EU from taking the immediate steps
outlined here that could reduce the death toll on the Mediterranean by stepping
up rescue efforts and by giving more people with an established protection need
a form of safe passage to the EU – either by means of resettlement of
established refugees or assessment of asylum-seekers’ protection needs as an
adjunct to the visa application process. There is a moral imperative for the EU
to act swiftly and effectively to address the issue.